Allahabad High Court
Tasleem vs State Of U.P. Thru. Prin. Secy. Home ... on 4 August, 2023
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:51585 Court No. - 15 Case :- CRIMINAL APPEAL No. - 1886 of 2022 Appellant :- Tasleem Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Sumit Kumar Srivastava,Sultan Hasan Ibrahim,Syed Ahmad Abbas Zaidi Counsel for Respondent :- G.A.,Manish Vaish Hon'ble Shamim Ahmed,J.
1. Case is taken up in the revised call.
2. Counter affidavit filed today on behalf of respondent No.2, is taken on record.
3. Heard Sri Sultan Hasan Ibrahim, learned counsel for the appellant, Sri Veerbhan Singh, learned A.G.A. for the State-respondent, Shri Manish Vaish, learned counsel appearing on behalf of respondent No.2 and perused the entire record.
4. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 17.05.2022 passed by the learned Special Judge, S.C./S.T. Act, Sitapur passed in bail application No.956 of 2022 (Tasleem vs. State off U.P.) arising out of Case Crime No.113/2021, under Section 302 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Udaipur, District Pratapgarh, whereby the bail application of the appellant has been rejected.
5. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. No such incident, as alleged by the prosecution, took place. He further submits that the incident occurred on 27.05.2021 at about 14:30 hours and on the same day the F.I.R. was lodged by the complainant on the pressure created by the relatives and the villagers. It was stated in the F.I.R. that the daughter of the complainant went outside in the fields to feed the cattle and when she did not return then the complainant went in search of his daughter, where he saw the appellant running away and thereafter, he reached the spot, where he found his daughter dead and he made hue and cry then some villagers reached there and the complainant thereafter, informed the local police, then the police personnel also reached the spot and the body was taken for postmortem.
6. He further submits that the appellant was taken into custody on the same day but the postmortem was conducted on the next day i.e. on 28.05.2021, which creates doubt on whole prosecution story and it appears to be planted by the police.
7. Learned Counsel for the appellant further submits that as per the postmortem report conducted at District Hospital, Pratapgarh by Doctor Madhu Yadav no external injury was found over the body of the deceased and further, it was opined by the Doctor that the cause of death could not be ascertained, hence, viscera was preserved for chemical analysis but till date viscera report is not available on record, this fact has also been confirmed by learned A.G.A. as well as learned Counsel appearing on behalf of respondent No.2, thus, in absence of viscera report and delay caused in conducting the postmortem itself shows that the entire prosecution story is doubtful.
8. He further submits that daughter of respondent No.2 died in field and it is not a case of strangulation and nothing has come in the postmortem report, thus, it appears that she died naturally or some poisonous insect bit her but there is no role of the appellant. He further submits that cause of death could have been known if the viscera report has been submitted by the prosecution, although, the charge-sheet has already been submitted in the present case.
9. He further submits that statement of the Doctor who conducted the postmortem over the body of the deceased was also recorded under Section 161 Cr.P.C. but she has not supported the prosecution story as narrated in the F.I.R., further, statement of two alleged witnesses, namely-Akshay Pratap Singh and Mewa lal alongwith the complainant was recorded under Section 161 Cr.P.C., wherein, they have almost reiterated the same version, as alleged in the F.I.R.
10. Learned Counsel for the appellant further submits that the statement of the complainant was recorded before the court below from 17.05.2022 to 26.05.2022, wherein, the complainant has clearly stated that the application for complaint was drafted by the police, in which, the police officer has specifically stated to take the name of the present appellant, he also stated that his earlier application which was drafted by him was torn by the police officer. He further stated that he has not seen anybody committing the crime or the murder of his daughter. Even though, he has further stated that he came on the spot after his daughter was declared dead. It was also stated by the complainant that the appellant never visited his house neither there was any relationship of the appellant with his daughter (deceased) nor any other complaint was made by him to the police against the appellant prior to this incident, whose village is about 2.5 kilometers from the village of the complainant. The police has implicated the present appellant on his own confessional statement.
11. Learned Counsel for the appellant further submits that no material was found from the place of occurrence, there is no allegation of any sexual assault and nothing has been recovered from the appellant or from the spot. He further submits that there is no independent eye witness, who has seen the appellant committing the alleged murder, thus, he submits that the entire case has been lodged by the complainant only to get some financial aid from the State Exchequer.
12. Learned Counsel for the appellant further places reliance on the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 and has argued that no one had seen the commission of crime, there is no connecting link to indicate the involvement of appellant in the commission of crime, it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the appellant in the present crime. He further submits that the appellant is not involved in the present crime, thus, the present appeal may be allowed and the appellant be released on bail.
13. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 27.05.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
14. Learned A.G.A. as well as learned Counsel appearing on behalf of the respondent No.2 opposed the prayer for bail and submits that the role of the appellant is very clear from the averments made in the F.I.R. but they have not been able to dispute the statement of the complainant in the court below, wherein, he has clearly stated he has not seen anybody committing the murder of his daughter.
15. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that no one has seen the appellant committing the alleged crime; there is no independent eye witness who has seen the appellant or any other co-accused person committing the alleged crime; there appears to be force in the argument of learned counsel for the appellant that no one had seen the commission of crime, there is no connecting link to indicate the involvement of appellant in the commission of crime, it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the appellant in the present crime and also taking note of the fact that the complainant in his statement given in the court below has clearly stated that he had not seen anybody committing the murder of his daughter and also perusing the medical report, which opines that the cause of death cannot be ascertained as the viscera report is not available and also considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Supreme Court in the cases of Sharad Birdhichand Sarda (supra), and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
16. Accordingly, the appeal is allowed. Consequently, the impugned order dated 17.05.2022 passed by the learned Special Judge, S.C./S.T. Act, Sitapur passed in bail application No.956 of 2022 (Tasleem vs. State off U.P.) arising out of Case Crime No.113/2021, under Section 302 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Udaipur, District Pratapgarh is hereby set aside and reversed.
17. Let the appellant, Tasleem be released on bail in the Case Crime No.113/2021, under Section 302 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Udaipur, District Pratapgarh with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iii) The appellant shall cooperate with investigation /trial.
(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(vii) The appellant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
18. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.
19. The trial court is also directed to expedite the trial of the aforesaid case within one year from today by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.
Order Date :- 4.8.2023 Piyush/-